Akpinar, R (On the Application Of) v Upper Tribunal (Immigration and Asylum Chamber)

For a settled migrant who spent all or most of childhood and youth lawfully in the host country, the requirement for very serious reasons to justify deportation is not a freestanding threshold confined to very serious offences. Article 8 requires a fact-sensitive proportionality assessment of all relevant circumstances. The weight needed to justify deportation depends on the seriousness and persistence of offending, the risk of further offending, the migrant’s age and residence, and the strength of ties to both countries.

Repeated offences may cumulatively provide sufficiently serious reasons even if each offence is not exceptionally grave. An appellate tribunal cannot substitute materially different findings about credibility or remorse without first identifying an error affecting the original fact-finding, particularly where it did not hear the oral evidence.

Two appeals concerning deportation and Article 8 were heard together. Irfan Akpinar appealed from Nicol J’s refusal of permission to seek judicial review of the Upper Tribunal’s refusal of permission to appeal. The First-tier Tribunal had upheld his automatic deportation following persistent offending culminating in violent disorder.

In the second appeal, the Secretary of State challenged the Upper Tribunal’s decision allowing AV’s appeal against deportation. AV had entered the United Kingdom aged 11 and had later received three and a half years’ detention for aggravated burglary and possession of an imitation firearm. The Upper Tribunal set aside the First-tier Tribunal’s decision and reached materially different views about his remorse and risk of reoffending without hearing oral evidence.

The central questions were the effect of the “very serious reasons” formulation in Maslov v Austria [2008] EHRR 546 and the limits upon the Upper Tribunal’s reconsideration of primary facts.

1. Akpinar’s appeal was dismissed. Paragraph 75 of Maslov v Austria [2008] EHRR 546 did not establish a freestanding legal threshold under which deportation of a settled migrant was permissible only for very serious offences. The words “in short” showed that the European Court was summarising its previous jurisprudence. Paragraph 76 and the Court’s ultimate reasoning confirmed that Article 8 required a conventional balancing assessment of all relevant circumstances.

2. The weight needed to justify deportation varies with the interference caused. A migrant with strong ties to the country of nationality may be affected much less than one who has no language, cultural or family connection there. The seriousness required on the public-interest side must therefore reflect the strength of the migrant’s private and family life. Persistent offending may cumulatively amount to serious offending even where the individual offences are not exceptionally grave.

3. The domestic authorities did not disclose clear and constant Strasbourg jurisprudence converting “very serious reasons” into a uniform precondition. The correct approach remained the proportionality assessment required by Article 8 and reflected in the Immigration Rules. Where the specified exceptions did not apply, very compelling circumstances were required to outweigh the strong public interest in deportation.

4. The First-tier Tribunal had considered all relevant circumstances in Akpinar’s case. His violent disorder, persistent offending, lack of remorse, risk to the public and continuing connections with Turkey supplied ample grounds for its conclusion. Read as a whole, its determination applied the principles in Maslov and disclosed sufficiently serious reasons for deportation.

5. The Secretary of State’s appeal in AV’s case was allowed. The Upper Tribunal correctly identified the First-tier Tribunal’s mistaken treatment of the case as automatic deportation. That error did not, however, justify replacing the First-tier Tribunal’s findings about AV’s credibility, remorse and responsibility. The Upper Tribunal had made no finding of unfairness or other material procedural error and had not heard AV’s oral evidence.

6. AV’s appeal was remitted for a fresh hearing before a differently constituted Upper Tribunal. It was to determine whether the First-tier Tribunal proceedings were unfair or materially irregular and then decide the claim on the facts properly established.

• Court of Appeal (Civil Division): dismissed Akpinar’s appeal, allowed the Secretary of State’s appeal in AV’s case, set aside the Upper Tribunal’s determination concerning AV and remitted his appeal to a differently constituted Upper Tribunal.
• High Court, Administrative Court: Nicol J refused Akpinar permission to seek judicial review of the Upper Tribunal’s refusal of permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): refused Akpinar permission to appeal. In AV’s separate proceedings, it set aside the First-tier Tribunal’s determination and allowed his Article 8 appeal.
• First-tier Tribunal: separately dismissed Akpinar’s and AV’s appeals against their deportation orders.